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Letter to CHIEF JUSTICE OF CANADA - 10Feb15 - (click here)
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Letter to CHIEF JUSTICE OF CANADA -
2Mar15 - (click here)
 

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----- THE INSURANCE APPRAISAL EFFECTS EVERYONE WHO HAS INSURANCE -----

This effects everyone that has insurance (car, fire, content, etc). I've been fighting the insurance company for over 3 years now trying to get them to pay to repair the damages from the fire that I had. The insurer wants to use the appraisal as an arbitration when it is not. So one of the issues that I am taking to the Supreme Court of Canada is the fact that an umpire should be a person that has experience in the damages being considered in the insurance appraisal. If it is... a fire and your house burnt down - then it should be a builder who has experience and understands what it takes to rebuild according to the by-laws. If its an automobile accident and your car was totalled then it should be a mechanic who understands what it costs to rebuild a car that's been damaged. If it's contents then it should be a contents valuator, etc... What the insurer wants to force on you is a lawyer - who has no experience to valuate the damages. This contravenes the Supreme Court of Canada ruling that an insurance appraisal is a valuation and not an arbitration and that no evidence needs to be presented to the umpire. The umpire is not supposed to be acting like a judge in this matter and should have the experience to do the proper valuation of damages.

I need your help to support the cause for everyone - send an email or write a letter - here's a quick link for a sample letter and email/mail directions:
http://www.phylummvm.com/phylumvdominion_support-page.html

Spread the word - thank you.
God Bless

 

To support this cause please go to our support page. (click here)

Together we can make a difference.

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Letter to CHIEF JUSTICE OF CANADA - 10Feb15

(CLICK HERE FOR PDF)

 

February 10, 2015

Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada
Supreme Court of Canada
301 Wellington Street
Ottawa, Ontario  K1A 0J1

Your Honour:

There is a clear and significant conflict and inequality in law across the nation in the provincial courts of appeal and a continued conflict and inequality at all levels of courts across Canada regarding the appointment and role of an umpire in an insurance appraisal. The insurance appraisal is of public interest that affects the rights of every citizen that purchases the security of an insurance policy for a peace of mind. The appointment of an umpire for an insurance appraisal forms a part of every provincial statute in Canada.

The Court of Appeal for Ontario, in this case, Phylum Corporation v. The Dominion of Canada General Insurance Company, 2014 ONCA 886, has chosen to overrule a prior decision set by the Supreme Court of Canada in Sport Maska Inc. v. Zittrer, [1988] 1 S.C.R. 564 where the Supreme Court of Canada held that an insurance appraisal is a valuation and not an arbitration and that an expert opinion would be required by the appointed umpire in the insurance appraisal.

The Saskatchewan Court of Appeal in Shinkaruk Enterprises LTD. v Commonwealth Insurance Co. (1990), 71 D.L.R. (4th) 681 has adopted the decision set by the Supreme Court of Canada ruling in Sport Maska

“Moreover, the reasoning employed in Pfeil and Krofchick, has now been specifically approved by the Supreme Court of Canada in Sport Maska Inc. v. Zittrer, [1988] 1 S.C.R. 564 at 588. It may now be considered settled that an appraisal under s. 108 and condition 11 under the Act is a valuation and not an arbitration.”

The Divisional Court of Ontario in Krofchick et al. v Provincial Insurance Co. Ltd. et al. (1978),21 O.R. (2d) 805 held:

“… the function of the appraisers and umpire was not to hear evidence, but rather to arrive at a decision on the basis of their own knowledge and expertise…”

Mary Zgrablic in her affidavit for support of the Applicant’s (Phylum’s) Application for Leave to Appeal states:

“… the Court of Appeal ruling in Phylum v Dominion, which found that the umpire in this case did not possess the proper knowledge and experience to provide an expert opinion but ruled that the umpire was properly qualified and provided no reasons for that decision. The Court of Appeal for Ontario has further stated that an umpire can hear evidence from the parties setting a provincial precedent in contradicting the Supreme Court of Canada.”

The Supreme Court of Canada in Canada v Craig, 2012 SCC 43, [2012] 2 S.C.R. 489 held:

“[26] Courts must proceed with caution when deciding to overrule a prior decision…No Justice is entitled to ignore the decisions and reasoning of his predecessors, and to arrive at his own judgment as though the pages of the law reports were blank…”

The Applicant, Phylum Corporation, is seeking leave to appeal this case, Phylum v Dominion,  so that the Supreme Court of Canada may have the opportunity to consider whether all provincial courts of appeal and lower courts are equal regarding an appointment of an umpire in an insurance appraisal and a further consideration to reaffirm past precedent set by the Supreme Court of Canada in Sport Maska so that there may be equality for every citizen across the nation and that each citizen will know what to expect in law given a case with similar material facts.

The Applicant, Phylum Corporation, is further seeking leave to appeal so that the Supreme Court of Canada may have the opportunity to provide guidance to the lower courts and to the citizens in consideration of one of the most critical questions for an insurance appraisal, what qualifications are necessary for a person to act as an umpire in an insurance appraisal? The consideration of this question may serve as a relief to the lower courts in this area of the law.

We trust that in light of your strong commitment to equality and access to justice that you will find this issue as disconcerting as we do.

For more information on this case please go to www.phylumvdominion.com or refer to Supreme Court of Canada file #: 36235 and Court of Appeal for Ontario file #: C59125

Have a great day – God Bless

 

 

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Letter to CHIEF JUSTICE OF CANADA - 2Mar15

(CLICK HERE FOR PDF)

 

March 2, 2015

Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada
Supreme Court of Canada
301 Wellington Street
Ottawa, Ontario  K1A 0J1

Re: Phylum v. Dominion SCC file #: 36235 – follow up to February 10, 2015 letter.

Your Honour:

Since our last letter to you, February 10, 2015, some further facts have come to light and it was necessary to update you so that you receive a larger picture.

The Respondent undeniably reinforces that there are conflicts at all levels of the courts regarding the appointment of an umpire for an insurance appraisal.

The Respondent presents a case from the Supreme Court of Nova Scotia in 265 Commercial Street Ltd. v. ING Insurance Company of Canada, 2010, NSSC 14 where a building was damaged by a fire and the parties where engaged in a motion for the courts to appoint an umpire pursuant to the Insurance Act of Nova Scotia. The Supreme Court of Nova Scotia held that:

“[36] The nature of the dispute between the parties requires the expertise of an appraiser, or a person with equivalent experience with the appraisal process, combined with a knowledge of construction standards.”

265 Commercial Street Ltd. v. ING Insurance Company of Canada, 2010, NSSC 14, Tab 4, p. 64 of the Respondents – Response to the Application for Leave to Appeal

The Respondent submits at para 28 of its ‘Response to the Application for Leave to Appeal’ that:

“The Respondent submitted before the motion judge in this case did not require any particular expertise and that the most qualified umpire in the circumstances of this case was one of familiarity with the appraisal process under the Ontario Insurance Act and prior experience acting as an umpire.”

Respondent’s – Response to the Application for Leave to Appeal, Tab 1, p. 8, para 28

The Respondent’s argument is at odds with the Supreme Court of Nova Scotia in 265 Commercial Street Ltd. v. ING Insurance Company of Canada who determined that the combination of both the appraisal process and knowledge of construction standards formed the expertise of the appropriate umpire for the insurance appraisal.

The Respondent failed its duty in the determination of justice to bring to light to the motions Judge and to the Court of Appeal that the selected umpire in this case did not have any knowledge in Construction Standards.

Reply to the Response to the Application for Leave to Appeal, Tab 2, p. 6, Exhibit AA – Affidavit of Dik Lee affirmed June 4, 2014 – Curriculum Vitae of Larry Gilbertson

If this case was to succeed and the Application for Leave to Appeal dismissed, this case would overrule the Supreme Court of Canada ruling in Sport Maska; it would be at odds with the Supreme Court of Nova Scotia in 265 Commercial Street Ltd. v. ING Insurance Company of Canada; it would be at odds with Court of Queen’s Bench of Alberta in Matti v Wawanesa Mutual Insurance Company. The Applicant submits that this is a matter of public and national importance.

If this case was to succeed and the Application for Leave to Appeal dismissed it would further widen the gap of inequality throughout the nation and it would further rule that an umpire can provide an expert opinion despite the fact that the umpire does not have the experience or knowledge in what the insurance appraisal is tasked to valuate. This is at odds with the Supreme Court of Canada ruling in Sport Maska.

We trust that in light of your strong commitment to equality and access to justice that you will find this issue as disconcerting as we do.

For more information on this case please go to www.phylumvdominion.com or refer to Supreme Court of Canada file #: 36235 and Court of Appeal for Ontario file #: C59125

Have a great day – God Bless

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